Alexandra Jones considers the key points in the new Environment Act, alongside some practical tips to bear in mind.
Key takeaway point
- Check when or if the provisions in the Act are yet in force, and whether they apply in England, Wales, Scotland or Northern Ireland. A number of the provisions are not yet in force, or are only in force in England, so it is worth checking whether they do indeed apply to you.
In recent times, a significant amount of the UK’s environmental legislation has originated from EU law. However, once the UK left the EU, some specific environmental protections that stemmed from Europe were at risk. The UK government has been seeking to address this issue, but it has been an incredibly slow process, particularly given the importance of the legislation. Nearly two years after the Environment Bill had its first reading, it finally received royal assent and the Environment Act 2021 became law on 9 November 2021. Hailed by the government as a world-leading piece of legislation, its main purpose is to protect and enhance the environment for future generations. But what does the Act do?
Main changes contained in the Act
The Act is extensive and contains a variety of changes, controls and requirements to seek to protect the environment. In summary, the main provisions are:
• A requirement for the secretary of state to set long-term, legally binding environmental targets for air quality, water, biodiversity and waste (which must be of at least 15 years in duration), alongside introducing an environmental improvement plan spanning at least 15 years, and the requirement to prepare a policy statement on environmental principles to seek to protect the environment and oblige policy makers to consider choosing options that cause the least environmental harm.
• Environmental targets for clean air, including the requirement for the secretary of state to produce regulations to set a legally binding target to reduce fine particulate matter (known as P.M2.5, which is one of the most harmful pollutants to human health, with the current legal limits four times weaker than current WHO guidelines) in the air, alongside new provisions allowing the secretary of state the power to make regulations to recall products that do not meet emission standards, such as vehicles or equipment. The Act also gives new powers to local authorities to impose civil penalty notices for the emission of smoke in smoke control areas in England in order to make enforcement easier. A notable change is that smoke emitted from a private dwelling in a smoke control area can be enforced as a statutory nuisance.
• The establishment of a new environmental watchdog in the form of the Office for Environmental Protection, which was legally formed on 17 November 2021 (albeit that it was set up in an interim, non-statutory form in July 2021). Its main role is to oversee public authorities (including ministers) to ensure compliance with environmental law, and to hold these public bodies accountable if they fail to comply with these laws. The OEP has been established primarily to replace EU oversight functions, but it is not fully operational yet. The OEP can investigate complaints that public authorities have failed to comply with environmental law and, where any breaches are serious, take enforcement action and seek legal redress in the courts by way of “environmental reviews” as well as judicial review in more serious cases.
• Water regime changes, including more duties and requirements for collaboration between sewage and water undertakers. In particular, there is a duty for sewerage undertakers to prepare and maintain sewerage management plans, alongside a requirement for the secretary of state to prepare a storm overflow discharge reduction plan before 1 September 2022. Other changes include the power for the secretary of state to make regulations about the substances to be taken into account in assessing the chemical status of surface water or groundwater, in order to modernise the process for water and sewage licence conditions.
• A vast array of changes to waste and recycling, including incentivising recycling, enabling resource efficiency standards to be set for non-energy-related products, extending producer responsibility to encourage businesses to create sustainable packaging, allowing for the introduction of charges for single-use plastics, electronic waste tracking to tackle waste crime such as fly-tipping, alongside the means to create the much-awaited deposit return scheme, whereby a consumer pays an up-front deposit when they buy a product, which is then redeemed once the used item is returned.
• Nature and biodiversity changes to ensure developments deliver at least a 10% increase in biodiversity, further woodland protection enforcement measures, the introduction of conservation covenants which need to be executed by deed, and an overall strengthened biodiversity duty to stop larger UK businesses from using commodities associated with wide-scale deforestation.
The Environment Act 2021 is divided into:
- Parts 1 and 2: Environmental governance
- Part 3: Waste and resource efficiency
- Part 4: Air quality and environmental recall
- Part 5: Water
- Part 6: Nature and biodiversity
- Part 7: Conservation covenants
- Part 8: Miscellaneous and general provisions
Where does the Act apply?
The territorial extent and jurisdiction for the application of the legislation is set out at section 146 of the Act.
The situation is complicated by the fact that although most environmental law and policy is a devolved matter (where decision-making has been delegated by parliament to the devolved institutions, such as Scotland), there are some reserved matters (decisions that are still taken by the UK parliament even though they have effect in Scotland, Wales, Northern Ireland or the regions of England). Therefore, the Act forms part of the law of England and Wales but most of the provisions apply to England only. A number of the provisions do apply to England, Wales, Scotland and Northern Ireland.
Annex A of the Explanatory Notes to the Act provides a useful table to set out the extent of the legislation. However, each provision will need to be reviewed on a case-by-case basis to confirm where it is applicable.
When do the provisions of the Act come into force?
An important point to consider is which parts of the Act are actually in force. The Act sets out that the provisions either come into force:
a. immediately;
b. two months after the legislation came into force; or
c. at the point that the secretary of state “by regulations appoints”.
In respect of (c), secondary legislation will need to be brought into force to fully enact these requirements. Therefore, a number of the provisions are not yet in force, and so further detail is expected.
Practically, what does this mean?
Some of the Act did come into force immediately and some by 9 January 2022. However, the majority of the provisions do not have any legal effect yet, and it is likely that there will be a delay in the introduction of the required regulations to bring these provisions into force.
One ambitious proposed change that will affect many developments in the future is the requirement for new development to provide a 10% biodiversity net gain. This will mean that all planning permissions (subject to exemptions) will need to be granted subject to a new pre-commencement planning condition that requires approval of a biodiversity gain plan by the local authority. The local authority can only approve the plan if the biodiversity value at the development exceeds the pre-development biodiversity value of the onsite habitat by 10%. The biodiversity plan must set out the steps taken to achieve this, and flexible mechanisms will be available to the developer to increase the biodiversity value of 10%.
The concept of biodiversity gain is by no means new. However, there has been no statutory requirement for developments to achieve this, and this could have a significant effect on the viability of projects. That being said, full details of this regime are not yet known and further regulations will be required to bring these into force.
“The Environment Act will deliver the most ambitious environmental programme of any country on earth. It will halt the decline of species by 2030, clean up our air and protect the health of our rivers, reform the way in which we deal with waste and tackle deforestation overseas. We are setting an example for the rest of the world to follow.”
George Eustice, environment secretary
Summary
The Act provides a post-Brexit legal framework which is only the beginning of the UK’s new environmental legislative landscape. Environmental issues do not respect political borders, and it is encouraging to see the UK playing its part in the effort to protect the environment and ensure environmental standards are maintained, implemented and bolstered. While the Act introduces targets and environmental standards, the legislation lacks clarity on enforcement measures, is complex in its application and has received criticism from environmental activists that the imposed targets are not sufficiently adequate.
Developers and local authorities determining planning applications and issues such as waste management, air and water pollution, drainage and biodiversity will all need to be scrutinised to ensure that the relevant targets and standards as set out in the Act are met.
What are conservation covenants?
Part 7 of the Act legislates for conservation covenants to secure long-term environmental benefits in development schemes. Conservation covenants are private voluntary agreements between a landowner and a “responsible body” (such as a charity or public body) which contain positive or restrictive obligations to do, or not do, something on their land for conservation purposes. These can be differentiated from easements as they are required for a conservation purpose and for the public good. They will need to be executed as deeds, rather than just signed in writing. They can run with the land and bind subsequent owners of the land, so have the potential to deliver long-lasting advantages.
True or false?
The Act requires the secretary of state to set interim legally binding targets on air quality, biodiversity, resource efficiency and waste reduction.
False: Despite various debates about the introduction of legally binding interim targets (mainly to ensure that the long-term targets are met), the government did not adopt them. However, long-term (at least 15 years) targets will be legally binding, and non-legally binding interim targets monitored as part of the Environmental Improvement Plan.
Alexandra Jones is a lawyer in the planning and environment team at Brabners
